TMI Blog1932 (12) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... an hour, after which they proceeded northwards along the street till they came to the crossing of Rani Swarnamoyee Road, where there is a petrol shop, that they stopped and loitered in front of that shop till a little before 9 p.m. when Sub-Inspector Chowdhury challenged Lalit and arrested him after a severe struggle: that the appellant Manmatha at once began to run away, but was stopped in a few yards by a constable and did not resist arrest. 2. Both were there and then searched. In Lalit's right hand pocket was found a revolver wrapped in paper and in his left hand pocket were the six cartridges. Upon the appellant Manmatha nothing incriminating was found. The revolver was in working order and the cartridges fitted it. I should here carefully add that Sub-Inspector Choudhury says that the movements of the accused gave him the impression that they were waiting for some one and that opposite the petrol shop they were pointing this way and that moving about restlessly. Sub-Inspector Roy says that opposite the Medical School their movements became suspicious. It appears that they had been pointed out to the officers as persons suspected of smuggling arms. The Special Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 107 unless expressly so authorised by Act of Parliament. By Sch. 5, Sections 106, 108(1), 109 and other sections are particularised as sections which may be repealed or altered by the Indian Legislature but Section 107 is not included, and therefore survives not with standing the wide language of Section 39 of the Ordinance: of. Emperor v. Balkrishna Hari Phansalkar AIR 1933 Bom 1. In the present case Mr. S.K. Basu has contended that the power of superintendence imposes upon this Court a duty to see that justice is done by the subordinate Courts in every case and that this duty rests upon the Court independently of any action which the aggrieved party may take or may not take. He founds upon the observations of Woodroffe, J. in Lekraj Ram v. Debi Prosad (1908) 12 CWN 678, to the effect that there is no form of judicial injustice which this Court cannot, if need bo reach and that Judges have repeatedly refused to make any declaration limiting their powers under the Charter. He further contends that as the accused has lost his right of appeal by reason of the shortness of the period of limitation we should on that ground be the more ready to examine his case upon the merits und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do what their duty requires and that they do it in a legal manner. It does not involve responsibility for the correctness of their decisions, either in fact or law. 7. Thus in England a mandamus to hear and determine according to law does not mean that the inferior tribunal is ordered to give a correct decision nor does prohibition lie to correct a wrong decision on the merits. The limits put upon appeals by the Indian Legislature are a part of the judicial system which it is just as necessary for this Court to enforce under Section 107 as any other feature of that system. Upon the Indian cases however I doubt whether sufficient attention has been paid to the fact that as regards Magistrates in particular the King's Bench in England has made extensive use of the writ of certiorari to bring up and quash convictions. Prohibition and mandamus are not I think the sole forms of superintendence which an Indian Court should bear in mind as a guide to the character of the power conferred by Section 16 of the Act, 1861. Defects of jurisdiction, fraud on the part of the prosecutor and error on the face of the proceedings are all good grounds for certiorari. Thus in R. v. John Smith A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticular decision, to interpose relief at the expense of introducing a precedent full of inconvenience and uncertainty in the decision of future cases. 9. This is in my opinion more in consonance with the nature of the power of superintendence, with judicial principle and with the due administration of justice itself, than is the alternative procedure which begins by refusing to recognize any limits to the power or any principles as fit to govern its exercise and ends by vouching discretion for the result, after an open rehearing of each case. So far from being tempted to extend the grounds of interference under Section 107 by the circumstance that the accused has allowed his right of appeal to become barred, I think that his difficulty is increased by the fact that he had such a right. Yet if he loses his rights as an appellant by a delay beyond seven days I cannot think that it is possible on that account to, refuse him the much more limited right to complain of his conviction under 8. 107. The circumstances are very strong to excuse his small delay. 10. By the ordinary standard for such matters in this Court he would have 60 days: he petitioned within 27 days. The matter m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evolver in Lalit's pocket belonged to this accused and there is nothing to show that if this accused had asked for it he would not have met with the reply: Certainly not. It is my revolver. No doubt if, both men acting together to shoot X, Lalit had fired the shot, Section 34 might apply to render Manmatha guilty of murder or of wounding. Again if the Magistrate had found as a fact that the two were in joint possession of the revolver the question before us would have been different. 12. But in what way Section 34 applies to show that Manmatha was in possession or control of the revolver. I do not understand. With all possible respect to the learned and very able Magistrate, this conviction rests in the end upon no foundation in the evidence or in the findings and I think it should be set aside under Section 107. We were asked to substitute a conviction for abetment, but we would only do that if the accused had an opportunity to meet a case based upon Section 28, Arms Act, and if we ourselves were satisfied with the proof of the elements of that offence. Neither condition is satisfied. I propose that we should treat this petition of appeal as an application under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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